When someone passes away, their last will and testament generally determines who their estate will be passed down to. In the majority of cases, where a will exists, the probate process is fairly smooth with few issues.
However, sometimes issues arise, often due to parts of the estate being passed down to individuals who close relatives feel are undeserving.
In many cases, there is little, if any recourse for parties who believe that a will is unfair. However, in some instances, there are legitimate legal reasons to contest a will. Here are 5 of them:
1. Belief That the Will Was the Result of Fraud
Do the terms of a family member or close friend's will seem unusual? Do you have reason to believe that one of the will's beneficiaries interfered with the person who made the will or with the will itself? If so, you may have sufficient reason to contest the will.
When dealing with a will, the term "fraud" can include anything from forgery, to fabrication, to applying undue influence to the testator. "Undue influence" is influence by which a person is induced to act outside of their own free will, often due to a party holding a position of power over the signee.
If you believe an existing will is the result of fraud as defined by the above criteria, you may be able to contest it. However, you must have sufficient evidence in order to successfully contest.
2. The Will-Maker Was a Minor
United States law stipulates that a will is legally binding only if it is signed by a person of 18 years of age or older. There are, however, exceptions to this rule for those who are in the military, those who have been legally emancipated, or who are married under the age of 18.
Up to the age of 18, a minor's estate is entirely controlled by his or her guardians, or in lieu of their actions, by state law applying to persons who die without a will. In most circumstances, these guardians control what happens with a deceased minor child's assets.
3. The Existence of Multiple Wills
On some occasions, a decedent will have more than one will in existence. This usually happens as a result of someone creating different wills with different lawyers.
In the majority of these cases, the most recent will is the one which will govern the probate process, provided that it meets all of the other requirements of a valid will.
If the wills are not dated, it can be difficult to determine which is the correct one. In these situations, an individual contesting the validity of a will would need to go to court in an attempt to prove that one will is valid over the other.
4. The Will Doesn't Meet Legal Requirements
Every state has adopted the Uniform Probate Act, which a will must adhere to in order to be declared valid. If a will doesn't meet these requirements, it will not be enforced.
At the very least, a will typically must be either written or typed, requires the name of the individual making the will, as well as at least one clause stating to whom the estate is being passed down to. The will must also be signed by the testator and witnessed by two disinterested parties. If you are, curious about will laws in Illinois, you can find them here.
If a person's will does not meet the requirements outlined under the law, you can contest it in court.
5. The Will Was Not Signed in the Presence of Witnesses
Another reason to contest a will is if it was not signed in the presence of witnesses. In many states, including Illinois, it is required that a person's will be signed in the presence two adult witnesses. These witnesses must also sign the will in the presence of the testator and of each other.
It is typically required that these adults do not appear as beneficiaries ("interested parties") in the will. In situations where one of the witnesses is an interested party, the will typically remain valid. However, the gift to the interested witness will be limited to what the witness would have received in an estate without a will, unless there are two other disinterested parties to the will.
Handwritten wills which were not signed in front of witnesses, also known as "holographic wills", are typically not valid in Illinois, and thus easier to contest.
Looking to Contest a Will in the Chicago Area?
If you're curious about contesting a will, or if you're actively trying to contest a will in the Chicago area, we here at John J. Pembroke & Associates are here to help.
Our attorneys have significant experience in probate and trust law, possessing decades of experience. We can give you the best possible chance of successfully contesting a faulty will.
Contact us today to schedule an appointment!